April 23, 2014

avatar

A Good Day for Email Privacy: A Court Takes Back its Earlier, Bad Ruling in Rehberg v. Paulk

In March, the U.S. Court of Appeals for the Eleventh Circuit, the court that sets federal law for Alabama, Florida, and Georgia, ruled in an opinion in a case called Rehberg v. Paulk that people lacked a reasonable expectation of privacy in the content of email messages stored with an email provider. This meant that the police in those three states were free to ignore the Fourth Amendment when obtaining email messages from a provider. In this case, the plaintiff alleged that the District Attorney had used a sham subpoena to trick a provider to hand over the plaintiff’s email messages. The Court ruled that the DA was allowed to do this, consistent with the Constitution.

I am happy to report that today, the Court vacated the opinion and replaced it with a much more carefully reasoned, nuanced opinion.

Most importantly, the Eleventh Circuit no longer holds that “A person also loses a reasonable expectation of privacy in emails, at least after the email is sent to and received by a third party.” nor that “Rehberg’s voluntary delivery of emails to third parties constituted a voluntary relinquishment of the right to privacy in that information.” These bad statements of law have effectively been erased from the court reporters.

This is a great victory for Internet privacy, although it could have been even better. The Court no longer strips email messages of protection, but it didn’t go further and affirmatively hold that email users possess a Fourth Amendment right to privacy in email. Instead, the Court ruled that even if such a right exists, it wasn’t “clearly established,” at the time the District Attorney acted, which means the plaintiff can’t continue to pursue this claim.

I am personally invested in this case because I authored a brief asking the Court to reverse its earlier bad ruling. I am glad the Court agreed with us and thank all of the other law professors who signed the brief: Susan Brenner, Susan Freiwald, Stephen Henderson, Jennifer Lynch, Deirdre Mulligan, Joel Reidenberg, Jason Schultz, Chris Slobogin, and Dan Solove. Thanks also to my incredibly hard-working and talented research assistants, Nicole Freiss and Devin Looijien.

Updated: The EFF (which represents the plaintiff) is much more disappointed in the amended opinion than I. They make a lot of good points, but I prefer to see the glass half-full.

Comments

  1. Anonymous says:

    Esperemos que las tanto las legislaturas como las cortes de otros paises adopten iguales o similares medidas.

  2. Anonymous says:

    I can’t reply to this where it’s on topic, because for some reason it says “comments closed” there and the comment submission form is missing, so I guess I’ll have to do it here.

    Curt Sampson — By saying HF traders “are quite often saving money for the folks who would make those trades anyway”, you’re implying that they net benefit long-term investors. But if HF traders are really saving some long-term investors money, either the HF traders are losing money themselves (in which case can you explain why any of them do it?) or they’re costing even more money from other long-term investors.

    There is a fallacy here: an assumption that this trading is a zero-sum game. In fact a key aspect of markets is that trades are positive sum: each party values what the other’s offering more than what they themselves are offering, so they swap, and both parties’ personal utilities go up. On a larger scale it manifests in such phenomena as economic growth and technological progress.

  3. AnonProfessor says:

    The cynic in me is tempted to view this as part of the continuing power imbalance between law enforcement and ordinary citizens. When law enforcement officers are accused of violating the law, courts tend to find that the law was not “clearly established” and so we couldn’t possibly hold the law enforcement officer accountable. When ordinary citizens are accused of violating the law, we are frequently reminded that “ignorance of the law is no excuse”. Never mind that, if anyone should be expected to know and understand the law and avoid gray areas, it should be law enforcement officers; that’s just the way it is.

  4. John Millington says:

    The problem with these kinds of rulings is that it only applies to the government, as though they were the only threat to privacy, and it only protects people from the government from a 4th amendment perspective. The cops might not be allowed to present unlawfully intercepted emails in court, but they (as well as many other people) can still read them.

    It just isn’t reasonable (“reasonable” as in what a technically-informed person would conclude; I don’t mean “reasonable” as in fair) to expect (“expect” as in predict or anticipate; I don’t mean “expect” as in desire) unencrypted emails to remain private. Yet laymen will read the headlines and then go on shouting plaintext over the internet, mistakenly thinking it to be “private.” But what happened wasn’t a victory for privacy; it was a victory for criminal defense, using privacy as its justification. Yet privacy itself was barely impacted at all.

    From a long-term privacy-advocacy perspective, a loss in this case might have been a better thing for the public. If people read “OMG the government is reading all your emails and sending copies to the Church of Scientology, your ex-wife’s Private Investigator, the neighborhood burglar and your boss — AND IT’S ALL LEGAL!” then that might create the social pressure for people to go ahead and use encryption. That would be a truly good day for email privacy.

  5. RealLawProfessor says:

    This ruling merely clears the way for investigators to continue invading privacy. They now know with certainty that the 11th Circuit will back their claim that there is no clearly established right to privacy in email, thus they are immune for their actions. I really don’t see how anyone on the side of consumers can call that a victory. The victory is clearly for rogue investigators, not the public.